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MEMORANDUM

TO:                 NEW JERSEY MAYORS

FROM:           WILLIAM G. DRESSEL, JR.; EXECUTIVE DIRECTOR

DATE:           SEPTEMBER 13, 2012

RE:                 FALL LEAGUE LEGISLATIVE AND LITIGATION UPDATE

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As the Legislature returns to Trenton for Autumn Sessions, we wanted to highlight some key issues that might get attention. I wanted to keep you up to date on how our legal team is representing your interests through our amicus intervention program.  The following includes a list of cases where the League is arguing as amicus.

I.          COAH- AFFORDABLE HOUSING TRUST FUND UPDATE

In early July, the Fair Share Housing Center and the League both sought relief from the Courts, asking for an injunction prohibiting the State from seizing funds until COAH promulgated regulations to implement PL 2008. c. 46 and until COAH gave municipalities a reasonable opportunity to comply with those regulations.   While the Court denied our request for the injunction, it also outlined certain actions COAH must take before ordering a municipality to transfer trust fund money to the state.   Specifically, the Court required COAH to provide written notice to each municipality, to explain how they calculated the amount due, and to give the municipality an opportunity to contest the transfer.

On July 24, municipalities received correspondence from the Acting Executive Director of COAH. These letters indicated what COAH’s understanding of which funds were not committed. These letters also required municipalities to certify that the information COAH had was correct. This letter also came with a sample certification form that COAH subsequently informed municipalities should be signed by the mayor even though CFOs and not mayors, typically have first hand information about the subject of the certification.   The letter goes on to say that if the information was incorrect that the municipality must update the trust fund monitoring information immediately and include a July 2012 bank statement.  COAH indicated that it would consider a failure to submit the certification as an acknowledgment that the indicated balances are correct. 

Further, the State provided a deadline of Monday, August 13 for municipalities to provide a transfer of the so-called “uncommitted” balances to the State.  If the municipality asserted that some or all of the funds are, in fact, committed, then it was to remit the uncommitted portion along with documentation to demonstrate those funds that are committed.  

After reviewing these letters, the League took the position they provided inadequate clarity and guidance for municipalities and did not comport with the July 13 Court order.  Further, we questioned whether the Acting Executive Director had the authority to require certifications or seize funds without permission of the COAH Board.
The issues returned to the Courts, and an Appellate panel issued an order on August 10 prohibiting COAH staff from acting without consent of its board. The Court stated that the “COAH Board...has not met and has not authorized the demand imposed on the municipalities” through the July 24, 2012 letter.

The Court went on to state that COAH staff is prohibited from “seeking a turnover from any municipality of affordable housing trust funds” without specific instructions from the COAH board, and that “any funds that have been turned over shall be returned to the municipality.”  If and when COAH will meet is not known.   The State has not indicated whether it will appeal the August 10 Order.

So, what we wrote in our August 13 Dear Mayor letter stays the same: municipalities are no longer required to remit to COAH any funds until the COAH board meets and authorizes the action.   Furthermore, it means that towns that have already sent in funds can demand that COAH return that money.

The Court did not deal with the request for the certification of funds in general or the issue as to the appropriate person to sign it.  As we have previously indicated, we are concerned with COAH’s Acting Executive Director demanding that mayors sign the certification because mayors rarely have firsthand knowledge of the information requested.

The League has advised that individual municipalities may want to consider a letter or some other document informing them of the actual current state of any affordable housing trust funds.  Local officials should consult with your municipal attorney and other affordable housing professionals as to whether the certification should be completed and who is the appropriate individual to sign it.

Questions on COAH can be directed to Mike Cerra at mcerra@njslom.com or 609-695-3481 x120. 

II.        ENERGY TAX RECEIPTS UPDATE

This year, as never before, and thanks to the excellent leadership and tireless work of League First Vice President Mayor Janice Mironov, New Jersey Mayors united in an effort to end the State’s chronic dependence on municipal property tax relief revenues.  Thanks to the support of local officials all around New Jersey, and the State officials who recognize and appreciate their service, we progressed ever closer to the restoration of vital municipal property tax funding.

A-2921/S-1900 would phase-in, over five years, the restoration of $331 million in municipal property tax relief funding.  Municipalities had sacrificed that $331 million in State Fiscal Years 2009, 2010 and 2011, to support the State’s budget in those difficult years.

These bills were introduced and supported by Legislators who acknowledged that the restoration of these resources would allow Mayors to provide their citizens with real property tax relief this year.  The bills, which garnered bipartisan support in both Houses, would have moved the State closer to compliance with the letter and intent of the 1999 law governing distribution of funds deposited in the Energy Tax Receipts Property Tax Relief (ETR) account and the Consolidated Municipal Property Tax Relief Aid (CMPTRA) program.
Support for the bills came from Mayors from all around New Jersey. North, South and Central Jersey - Republicans, Democrats and Independents – from cities, suburbs and rural communities – all lost property tax relief revenue in SFY 2009, 2010 and 2011.  And all would gain property tax relief resources from A-2921/S-1900.

On behalf of Mayors all around our Garden State, and on behalf of the citizens they serve, we urged Governor Christie to approve A-2921.  We also offered to meet with the Governor or his staff to address any questions or concerns they may have had with the bill.

Instead, referring to State budget concerns, the Governor has vetoed this initiative.  We cannot expect the Legislature to over-ride that veto.  As a result, this year, as in the past, these dollars will again be used to support State spending.

Having come this far, New Jersey Mayors cannot stop now.  We intend to continue to push for the restoration of this relief when the Legislature reconvenes.

Questions on Energy Tax Receipts can be directed to Jon Moran at jmoran@njslom.com or 609-695-3481 x121. 

III.       S-1451 and S-1452 – Amendments to OPRA and OPMA

At the last Senate Budget and Appropriation Committee before Summer recess, S-1451, which amends the Open Public Meetings Act and S-1452, which amends the Open Public Records Act were amended and released without recommendations.  At that time, Senator Weinberg, sponsor of both bills, noted that she wanted to amend the bills so she could meet with stakeholders to discuss the amendments.

The revisions to S-1451 (OPMA) are as follows:

  1. Removes the requirement to have estimated start time for public comment on the agenda.   Requires that the estimate start time for the meeting in which the public is not excluded be on the agenda.

  2. Removes the ability to discuss a matter not listed on the agenda, including if the matter is brought up by a member of the public during public comment.  However, the governing body can still take action on any matter not listed on the agenda by a 2/3 vote of the members present at the meeting.

  3. Changes the vote needed for an emergency meeting from ¾ of the members present to 2/3 of the members present.

  4. Changes the language regarding private communication.  Removes the term “any” means and replaces it with “means of communication equipment, including electronic mail, instant messaging or similar technologies”

  5. Removes the requirement to have 2 public comment periods at every meeting.  Instead requires that there is a public comment prior to the consideration of items on the agenda.

  6. Changes the exception to personnel matters to “employment, appointment, termination, evaluation, promotion or discipline”.  Still requires a Rice Notice to employee and every other known employee or officer whose employment, appointment, termination, evaluation, promotion or discipline would have to be unavoidable to have to be disclosed.

  7. Removes the requirement, for those with sound recording devices, to record close session meetings.

  8. Removes the language that close session recordings are exempt as a public record until such time as the justification for holding the close session no longer exist

  9. Removes the requirement that any revisions to the annual notice be published

  10. Deletes the requirement that DCA establish a central website for all public notices

The revisions to S-1452 (OPRA) are as follows:

  1. Removes the phrase “Nothing contained herein shall constitute an exception under the law.”

  2. Adds the following exceptions to OPRA:

    a. e-mail addresses of any individual provided to a government entity for the sole purpose of receiving emergency notifications
    b. portion of any document which discloses personal information of persons under the age of 18 years

  3. Removes the definition for “Privacy” and “Reasonable”

  4. For redactions, removes the phrase “in their entirety” for specify the total number of pages deleted or excised

  5. For special service charge removes the requirement for the index and replaces it with a detail breakdown of how the special service charge was assessed.  In addition, it removes the requirement to provide a description of exempted records.

  6. Changes the proposed composition of the Government Records Council.
    a. Removes the DCA Commissioner, Education Commissioner, Attorney General, President of the Municipal Clerks Association and 3 public members.
    b. 4 public members – 1 Municipal Clerk or retired Municipal Clerk, 1 with knowledge of or experience with the news media, 1 representative of local government and 1 member of the general public.  The 4 public members are to be appointed by the Governor, with the advice and consent of the Senate and no more than 2 of the same political party.
    c. 3 public members appointed by the Governor, 1 upon the recommendation of the Senate President, 1 upon the recommendation of the Assembly Speaker,  and 1 upon the joint recommendation of the Senate President and Assembly Speaker.  No more than 2 shall be of the same political party.
    d. The 7 members appointed by Governor shall serve during the term of the Governor making the appointment and until the appointment of a successor, except the Chair
    e. The Governor shall appoint 1 of the 7 members to serve as chair of the GRC.  Once appointed that person shall serve as chair for 6 years from the date of appointment and until a successor is appointed and qualified.  The chair may be removed by the Governor only for cause upon notice and opportunity to be heard.
    f. A member may be removed by the Governor only for cause upon notice and opportunity to be heard
    g. Only the public member who is a representative of local government shall be able to hold a State or local elected or appointed office or employment while serving as a member of the council.

  7. Requires the posting of the GRC Executive Director’s recommendation for each case on-line 24 hours prior to the meeting, to the extent known.  In addition, requires that the paper copies of the same be available at the meeting with any changes or additions that were not presented when the information was posted on-line.

  8. Each party shall have 1 opportunity to provide to the GRC any documents or information necessary for the adjudication of the case

  9. Provides for the ability of the Superior Court to issue a protective order limiting the number and scope of request a requestor can make.  The protective order can be issued if the Court determines that a requestor has sought records for an improper purpose, which includes but not limited to, the harassment of the public agency and its employees.  The order may limit, or if appropriate, eliminate the public agency’s duty to respond to government records requests from the requestor in the future.  The order is immediately reviewable by petition to the appellate court.  Any person who fails to obey the order of the court shall be cited to show cause why they are not in contempt of court.   The county of residency is any address listed on the government records request.

Throughout the summer, Lori Buckelew has been working with a group of stakeholders to outline our concerns and suggested changes to the bills.  Lori along with William Kearns and Matt Weng has meet with the ACLU-NJ to develop a joint memo outlining our joint concerns with the bill along with suggested language changes.  At a September 11 meeting with Senator Weinberg, the ACLU-NJ and the League, we discussed our joint concerns and proposed changes.

Questions on S-1451 and S-1452 can be directed to Lori Buckelew at lbuckelew@njslom.com or 609-695-3481 x112.

IV.       S-1534/A-2586 – Private Colleges Exemption to MLUL

The League opposes A-2586 and S-1534, which exempts private colleges and universities from local zoning requirements.  This legislation undermines and usurps local decision making and severely diminishes the role of our taxpayers.  The Senate version of this bill passed the Senate in June, and it and its Assembly companion, A-2586, are referenced to the Assembly Higher Education Committee. 

A court case in the early 1970s established that a public college or university is exempt from local zoning.  The Court basis for this decision was its conclusion that these institutions are instrumentalities of the State.  Thus, what A-2586 and S-1534 will do is provide to certain private institutions the same status as instrumentalities of the State, such as Rutgers, the Parkway and the Turnpike. This is a very concerning precedent and it is simply bad public policy.

Public scrutiny, involvement and complete transparency are essential to the planning process, and should not be diminished or hindered in any way. The involvement of locally elected officials, appointed officials and residents can only improve, not diminish, projects. 

Shifting the authority to private colleges and universities in the determination of land uses for education purposes further burdens taxpayers to meet the cost impacts incurred as a result of the additional, unbridled development

While the bill appears to impact only 14 institutions, we are aware that some of these schools own land in other surrounding communities, and such property would also be exempt from local zoning. 

Further, A-2586 & S-1534 would establish another troublesome precedent.    While the bill itself applies only to private colleges and universities, a very dangerous precedent could be established, allowing other non-profit institutions who similarly serve a “public mission” to argue that they should also be exempt from local zoning control.  The logical extension of this could impact every community in this State.

We recommend contacting your Assembly representatives and ask them to oppose A-2586 and S-1534.   Questions on this legislation can be directed to Mike Cerra at mcerra@njslom.com or 609-695-3481 x120.

V.        S-2 – Senator Sweeney’s Shared Service Bill

S-2, an act promoting the more effective operation of local government and sharing of services among local units was released from the Senate Community and Urban Affairs Committee on February 27, 2012 and awaits consideration by the Senate Budget and Appropriation Committee.  In numerous press accounts Senate President Sweeney has stated that S-2 is one of his top priorities. 

First, we want to thank Senate President Sweeney and his staff for continuing to involve the League in the process.  We appreciate the numerous amendments the Senator has made to S-2 at the request of the League.  By removing or reducing many of the roadblocks that increase the costs of shared services – things like terminal leave pay, civil service mandates, employee tenure requirements – many of the provisions in Senator Sweeney’s bill could reduce the costs and hurdles to shared services and consolidations, produce municipal savings and promote relief for our taxpayers.

We could support S-2 if not but for the voter penalty but that is a big “if not but for”.  We must continue to oppose any proposal which would, on the one hand, allow the voters to express their will; but on the other hand, inform those voters that they will be penalize if their will does not comport with that of a majority of the appointed members of LUARCC.

It cannot be argued that taxpaying voters who democratically reject an option offered them by a bureaucratic State agency, thereby, forfeit the right of property tax relief funding.  As taxpaying citizens of the State of New Jersey, they must be allowed the encumbered right to determine the future government of their communities.  And they must be assured equitable access to the benefits secured by their own tax dollars.              

We have been a long time, and continue to be, a supporter of shared services.  In fact, the vast majority of municipalities are already involved in sharing of services.  Many of them were initiated long before our current crisis. 

There is no oversight cure to our property tax crisis.  Shared services, consolidation or other cost saving measures are long-term actions where benefits/savings may not be seen for a number of years down the road.  The vast majority of Mayors are willing to consider options, but do no want to see their citizens punished, if they disagree with the decisions reached by LUARCC.  We trust the judgment of the people who elect us.  Legislators need to trust local officials to do the right thing when the situation warrants, as well.  And we all need to work together. 

The time has come for public servants at all levels of government and in all local units to put our heads together and work towards a serious approach that will benefit taxpayers in the long run.

Questions on S-2 can be directed to Lori Buckelew at lbuckelew@njslom.com or 609-695-3481 x112.

VI.       Removal of Statute of Limitation for Certain Civil Actions for Sexual Abuse

The League opposes A-2405/S-1651, which would remove the statute of limitations on civil actions for sexual abuse, including claims against public bodies, and expand the categories of people who are potentially liable for such actions.  The Assembly Judiciary Committee approved A-2405 and it is currently at second reading in the Assembly.  The Senate Judiciary Committee approved the companion bill and it is currently at second reading there, as well.

The League understands and applauds the sponsors’ intent.  Sexual abuse of a child is a terrible crime that can have repercussions for years.  We also agree that the current statute of limitations of 2 years on all claims is too short a time.  We support Assembly Majority Leader Lou Greenwald’s bill, A-2681, which would extend the statute of limitations from 2 to 7 years for suits against public bodies, and remove the statute of limitations entirely on the actual perpetrators.

We cannot, however, support A-2405/S-1651.  If this bill passes, any claim of sexual abuse, no matter how far in the past, can be revived, and may go forward.

Under this bill municipalities would be faced with the near impossible task of defending a claim of sexual abuse that may be decades old.  In the case of a more recent claim of abuse, the officials who may have been negligent in supervising their employees may still be in power, and thus may suffer some indirect repercussions, such as the loss of their employment.  However, in the case of a decades old claim of abuse, those officials are likely to be long gone.

Permitting these types of claims against the municipality itself would only punish current taxpayers.  This is because the mayor, administrator, or supervisor in place at the time of the abuse does not pay a successful claim against a municipality; indeed, the current officials do not pay these claims.  The residents of the towns pay these claims through increased taxes or reduced services

We urge you to adopt the following resolution and contact your state legislators to express the potential fiscal impact to towns if this bill passes.  The resolution is available on-line at:

PDF- www.njslom.org/resolutions/resolution-A2691-A2404-S1651.pdf
WORD - www.njslom.org/resolutions/resolution-A2691-A2404-S1651.doc

VII.     A-323/S-2074 – Permits “Agricultural Tourism” Activities on Preserved Farmland

In May the General Assembly approved A-323 which would permit “special occasion events” to be conducted on preserved farmland. It is now referenced to the Senate Economic Growth Committee, where it joins its Senate companion, S-2074.  The League opposes the legislation.

The legislation is being pushed by a number of wineries operating on preserved farmland. However, the bill is not limited to wineries, and could permit these events on any preserved farmland throughout the State. It is our belief that these proposed amendments circumvent the objectives of the State’s successful farmland preservation efforts, in which public dollars have been committed to permanently preserve prime agricultural lands throughout the Garden State.

Further, A-323 & S-2074 would qualify preserved farmland for commercial activities without the appropriate degree of local input and oversight over the frequency, intensity and other planning related impacts. The municipality and the neighboring residents might have to deal with increased traffic, litter, solid waste and noise issues. Accordingly, the local governing body should be allowed the broad discretion to determine when and if each of the designated events should be allowed, and to set conditions on a permitted activity. In this case, this is not an issue that can or should be dealt with a single, statewide standard. Municipalities should be accorded the appropriate oversight to balance the concerns of the farm and those of its residential and commercial neighbors.

At the request of a number of towns, the League has prepared a sample resolution for your consideration. It is posted online at:

PDF - http://www.njslom.org/resolutions/resoluton-opposing-A-323-(2012-2013).pdf
WORD – http://www.njslom.org/resolutions/resoluton-opposing-A-323-(2012-2013).doc

We do note that the League and some local officials will be meeting with Senator Donald Norcross, the Senator sponsor, in the upcoming weeks to address the concerns outlined above. The sponsor has acknowledged the concerns of municipalities and will meet with interested stakeholders before any consideration of the bill in the Senate. The League will advise you of all developments related to the bill, but in the meanwhile we would recommend contacting your State Senator with your concerns with A-323/S-2074.

Questions can be directed to Mike Cerra at mcerra@njslom.com or 609-695-3481 x120.

VIII.    LEAGUE AMICUS UPDATE

  • Keyport v. I.U.O.E., Local 68
    • Filed before the New Jersey Superior Court, Appellate Division
    • Involves Civil Service rules and labor negotiations
    • Specifically, whether Civil Service regulations preempted negotiations over layoffs.
    • Oral argument was heard on March 28.  Staff Attorney Matthew Weng argued on behalf of the League.  We are currently awaiting a decision.
  • Paterson Police PBA Local 1 et al v. Paterson
      • Filed before the New Jersey Superior Court, Appellate Division
      • Involves the recent pension and benefit reforms
      • Specifically, it involves how to calculate "base salary" for the purposes of calculating the required health benefits employee contribution
      • Oral argument will be scheduled for sometime in fall 2012.
  • Linden Roselle Sewerage Authority, et als., v. NJ DEP 
    • Filed before the New Jersey Superior Court, Appellate Division     
    • Challenges the validity of the definitions of "sewage" and "sewage sludge" promulgated by DEP
    • Motion to participate filed in mid-August.
  • Borough of East Rutherford v East Rutherford PBA Local 275
    • The League and the Institute of Local Government Attorneys are moving to participate as Amicus before the NJ Supreme Court.
    • This case revolves around employee health insurance co-pay obligations.  As you may know, the original state health benefits plan co-pay was $5.00.  The Plan raised it to $10.00.  The East Rutherford PBA objected claiming that the Borough had an obligation to pay or reimburse the $5.00 additional cost per visit.
    • The brief will be done by Steven Kleinman
  • Borough of Saddle River v. East Allendale, LLC
    • Filed before the New Jersey Supreme Court
    • This case involves the introduction of evidence of a possible zoning change of condemned property, which may have improperly inflated its value
    • Motion was filed earlier this month.
  • Gannett v. Borough of Raritan
    • Before New Jersey Superior Court, Trial
    • League has been involved in this case for several years
    • Involves the Open Public Records Act.  Specifically, whether a record needs to be intelligible to a human to be considered a record
    • Raritan recently lost at trial and is moving for reconsideration

If you believe League intervention would benefit a case your municipality is involved in, the mayor, administrator, or municipal attorney can submit a request to League Staff Attorney Matthew Weng or to the League General Counsel Bill Kearns, who also serves as Chair of the Intervention Committee.

In considering requests for intervention, the Intervention Review Committee normally requires cases to be on appeal and to involve a novel question affecting municipalities generally.  Ordinarily the case should not involve a conflict between municipalities, and we will not intervene in a case where the legal position of the municipality cannot be supported.

If you have any questions or would like to discuss amicus intervention, please do not hesitate to contact League Staff Attorney Matthew Weng at 609-695-3481 ext 137 or at mweng@njslom.com

 

 

 

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